Calcutta High Court
Orissa Concrete And Allied Industries ... vs Union Of India (Uoi) on 10 November, 1998
Equivalent citations: 1999(65)ECC863, 1999(112)ELT31(CAL)
Author: Satyabrata Sinha
Bench: Satyabrata Sinha
JUDGMENT Satyabrata Sinha, J.
1. On or about 16-9-1981 a contract was entered into by and between the petitioners and the respondents for manufacture and supply of Monoblock Concrete Sleepers containing an arbitration clause which reads thus :-
"Arbitration - In the event of any dispute or difference arising in connection with this contract the same shall be referred to the 'Arbitrator' to be appointed by the General Manager, South Eastern Railway, Garden Reach in terms of provision 2900 of the Indian Railway standard conditions of contract (copy attached with Railway Board's above acceptance of tender letter) and the award of the Arbitrator shall be final and binding on the parties to this contract."
2. According to the petitioners, pursuant to the said agreement, they have manufactured and supplied a large number of Railway Sleepers to the respondents. By a letter dated 3-10-1991 the Railway administration informed the petitioners that the Railway Board has fixed the rate of concrete sleeper which would also applicable to the case of the petitioners. The petitioners contend that the said purported letter is not applicable in the instant case as said circular cannot be given retrospective effect and otherwise arbitrary and, thus, they should not be asked to take recourse to the Arbitration Agreement. Reliance in this connection has been placed on A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and Anr. , Shiv Shanker Dal Mills v. State of Haryana and Ors. and Govind Prasad v. R.G. Parsad and Ors. .
3. It is now a well settled that a writ court normally does not entertain a writ application when there exists an arbitration agreement. The matter relating to performance of contract by the contracting parties, in absence of any arbitrariness which would attract the wrath of Article 226 of the Constitution of India would not come within the purview of power of judicial review of High Court under Article 226 of the Constitution of India as the same does not contend any public law character.
4. It is also well settled that there exists an arbitration agreement, parties are required to get their disputes arising out of the contract adjudicated by the domestic forum created by them.
5. In Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board and Anr. , the Apex Court held :-
"It is then submitted that this Court should not use its discretion in favour of arbitration in a matter where it is a pure question of law as to the power of the Board to levy a surcharge. This submission would have great force if the sole question involved were the scope and ambit of the power of the Board under Sections 49 and 59 of the Act to levy a surcharge, as it was sought to be initially argued. The question in that event may not have been within the content of clause 23 of the agreement. But all questions of law, one of which may be interpretation of the agreement, need not necessarily be withdrawn from the domestic forum because the court has discretion under Section 34 of the Arbitration Act or under Article 226 of the Constitution and that the court is better posted to decide such questions. The arbitration clause 23 is a clause of wide amplitude taking in its sweep even interpretation of the agreement and necessarily, therefore, of clause 13 therein. We are, therefore, unable to accede to the submission that we should exercise our discretion to withhold the matter from arbitration and deal with it ourselves."
6. Yet recently a Division Bench of this court in Engineers India Ltd. v. D. Wren International Ltd. reported in 1997 (2) CHN 1, has clearly held that even any case where the sale letter which contained the arbitration clause was yet to be delivered and although before delivery of such letter, the contract was rescinded, the arbitration agreement must be taken recourse to by the parties.
7. An action on the part of the contracting party which may not be strictly within the purview of the contract would not by itself amount to an executive order issued by the State.
8. In that view of the matter, the contention that the order cannot have any retrospective effect as has been stated in Govind Prasad v. R.G. Parsad and Ors. reported in 1994 (1) SSC 437 can also be raised before the Arbitrator.
9. In Shiv Shanker Dal Mills v. State of Haryana and Ors. involved a question as to whether a market fee paid by the petitioner had been paid by excess or not. Such market fee had been in terms of a statutory enactment and not under a contract. It is in that fact situation Krishna Iyer, ], observed :-
"Where public bodies, under colour of public laws, recover people's money, later discovered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of 'alternative remedy' since the root principle of law married to justice, is ubi jus ibi remedium."
10. In A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and Anr. , the Apex Court held :-
We see considerable force in the argument of the learned Solicitor - General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion."
11. It is now a trite law that a decision is an authority on what it decides and not what can logically be deduced therefrom. In Sree Govind Properties & Investment (P) Ltd. v. Air Transport Corporation reported in 1998 (3) ICC 149, a Division Bench of this Court held :-
"Each case has to be considered on its own facts. The Supreme Court in Regional Manager v. Pawan Kumar Dubey held : "One additional or different fact can make a world of difference between conclusions in the case even when the same principles are applied in each case to similar facts."
In Quinn v. Leathern reported in 1900-1903 All ER (rep) page 1 at page 7 it was held :-
I have very often said before that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. I think that the application of the two propositions renders the decision of this case perfectly plain, notwithstanding the decision in Allen v. Food."
12. In the instant case, the Arbitration Agreement is of wide amplitude. In the opinion of this court, all contentions raised in the writ application can also be raised before the Arbitrator. If the circular of the Railway Board is not applicable to the contract, the Arbitrator would be entitled to go into the said question and in any event can award damages for breach of contract on the part of the respondents, if any.
13. For the reasons aforementioned, this writ application is not maintainable as the petitioners have an alternative remedy to which they can take recourse to. This writ application is dismissed accordingly without any order of costs.